King v. Davis

• Decision Date: 31 October 1884
• Court: North Carolina Supreme Court
• Parties: SUSAN KING and others v. ANTHONY DAVIS, Ex'r, and others.

91 N.C. 142

SUSAN KING and others

v.ANTHONY DAVIS, Ex'r, and others.

Supreme Court of North Carolina.

October Term, 1884.

SPECIAL PROCEEDING for an account, &c., commenced before the clerk, and heard at Spring Term, 1884, of LENOIR Superior Court, before Shepherd, J.

Richard W. King died on March 7th, 1883, leaving a will bearing date in August, 1880, with a codicil annexed made on October 27th, 1881, which have been duly proved as such, and letters testamentary issued to the defendant, Anthony Davis, the sole surviving executor therein named. In the 11th clause of the will the testator, to the defendant Richard Taylor, then an infant and illegitimate child of one Mary E. Taylor, devises a tract of land consisting of 240 acres, more or less, for life, and if he die leaving heirs of his body him surviving, the remainder to them in fee; and if none such, then to the children of Mary Ann Hunter and Sophia C. West.

In the next clause he gives to his executor, Anthony Davis, in trust for said Richard Taylor, the sum of $500 to be used in his education and the residue not expended to be paid over to him on his attaining the age of twenty-one years, with limitations over similar to those connected with the devise, should he die before reaching majority and leave no heirs of his body.

On the 25th day of October, 1882, application was made by said Richard W. King, the said Mary E. Taylor the mother, and the said Richard Taylor, under the act of March 3rd, 1873, Bat. Rev., ch. ??, for the adoption of the said infant by the said Richard W. King for the life of said Richard Taylor, and judgment was accordingly so rendered in favor of the petitioner in form as follows:

“Upon reading the foregoing petition, the court doth declare that the facts set forth in the said petition are true, and it is therefore decreed that the name of the said Richard Taylor be, and the same is hereby changed to Richard King.

And it further appearing that the said Richard W. King is a proper and suitable person, the adoption prayed for in said petition is hereby sanctioned and allowed, and it is ordereb that letters of adoption of the said Richard Taylor be granted and issued to the said Richard W. King, and that the said Richard Taylor be, and is hereby declared to be the legitimate child of the said Richard W. King, in pursuance of sections 7 and 8 of chapter 9 of Rattle's Revisal, and this order shall have the effect forthwith to establish the relations of parent and child between the said Richard W. King and the said Richard Taylor for the life of the said Richard Taylor with all the duties, powers and rights belonging to the actual relationship of parent and child, and should said Richard W. King die intestate, said Richard Taylor shall inherit the real estate and be entitled to the personal estate of the said Richard W. King in the same manner and to the same extent, said Richard Taylor would be entitled to, if he had been the actual lawful child of the said Richard W. King.

It is further ordered that this order be recorded in the office of the clerk of the superior court of Lenoir county aforesaid, this 25th day of October, 1882.

W. W. N. HUNTER,

Superior Court Clerk.”

This judgment rendered by the clerk was submitted to the judge and endorsed with his approval.

It embodies the provisions of the statute in declaring the legal effect of the adoption as set out more especially in the sections referred to in the decree.

In the Revised Code, ch. 119, § 29, it is provided that: “Children born after the making of their parent's will, and whose parent shall die without making any provision for them, shall be entitled to such share and portion of said parent's estate, as if he or she had died intestate.”

The present suit, at the instance of the other legatees, is instituted against the executor and the said Richard Taylor, or King as his name now is, for a general settlement of the testator's estate and the payment of the legacies, there being no debts of the estate to be paid and no necessity for the retention of the funds in the hands of the executor.

The executor submits to an account while the defendant Richard represented by his guardian, insists that he is entitled to the entire estate, real and personal, except the portion to which the widow of the testator is entitled, and this by virtue of the statute last referred to, and his adoption after the making of the will, placing him in the same relation towards the testator as an after-born child would be, the birth and adoption being equivalent in their legal consequences.

The clerk rejected this claim and adjudged that the said Richard could only claim the property given him in the will, and upon appeal this ruling was affirmed by the judge who rendered judgment that the executor...